Citation Nr: 0841463
Decision Date: 12/03/08 Archive Date: 12/09/08
DOCKET NO. 06-12 396 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for residuals of cold
exposure to the nose and ears.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
B. Thomas Knope, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1951 to May 1954.
This matter is on appeal from the Huntington, West Virginia,
Department of Veterans Affairs (VA) Regional Office (RO).
By decision dated in June 2006, the RO granted service
connection for cold injury residuals to the veteran's upper
and lower extremities. Because this is a full grant of the
benefit sought on appeal, the Board's review is limited to
his claim of residual cold exposure to his nose and ears
only. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997);
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).
FINDING OF FACT
Cold injury residuals to the nose and ears are not currently
shown.
CONCLUSION OF LAW
Residuals of cold exposure to the nose and ears were not
incurred in or aggravated by service; cold injury residuals
to the nose and ears are not shown. 38 U.S.C.A. §§ 1110,
1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service. 38
U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is
shown in service, subsequent manifestations of the same
chronic disease at any later date, however remote, may be
service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2008). However,
continuity of symptoms is required where a condition in
service is noted but is not, in fact, chronic or where a
diagnosis of chronicity may be legitimately questioned. 38
C.F.R. § 3.303(b) (2008).
Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2008). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service connection may only be granted for a current
disability; when a claimed condition is not shown, there may
be no grant of service connection. See 38 U.S.C.A. § 1110
(West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992)
(Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability). "In the absence of proof of
a present disability there can be no valid claim." See
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The veteran asserts that he has cold injury residuals of his
nose and ears as a result of combat service in Korea. He has
indicated that he served in Korean from October 1952 to
October 1953. According to his DD-214, he received the
Combat Infantryman Badge and the Korean Service Medal, as
well as other unit decorations.
The provisions of 38 U.S.C.A. § 1154(b) provide that the
Secretary shall accept lay or other evidence of an incurrence
or aggravation of an injury or disease while on active duty
as sufficient proof for service-connection purposes, if
consistent with the circumstances, conditions, or hardships
of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such
service. Furthermore, VA shall resolve every reasonable
doubt in favor of the veteran.
However, § 1154(b) does not create a statutory presumption
that a combat veteran's alleged disease or injury is service
connected. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir.
1996). Rather, it aids the combat veteran by relaxing the
adjudicative evidentiary requirements for determining what
happened in service. Id.
The veteran's service treatment records do not note any
injuries related to cold exposure. While his report of
medical history from May 1954 indicated that he had "ear,
nose and throat trouble," the precise nature of the
disorders was not specified. Additionally, his separation
physical completed that same month does not reflect cold
exposure injuries or disorders with the ears or nose.
Nonetheless, the Board takes notice of the well-documented
extreme cold conditions that Korean War veterans were exposed
to in the combat theater. Given his statements, in
conjunction with his documented combat history and resolving
every reasonable doubt in favor of the veteran, the Board
concludes that he was exposed to cold in service.
Post service evidence is negative for complaints related to
cold injury residuals for many years after discharge. The
first notation of any injuries due to exposure to extreme
cold were not reported until he filed his claim in November
2004, approximately 50 years after he left active duty
service. This is particularly notable as he was treated
numerous times for other health disorders but failed to
mention any injuries related to cold weather exposure.
Specifically, the veteran was repeatedly treated for chest
pain in 1974-1975. However, the corresponding medical
evaluations in December 1974 and February 1975 do not mention
any disorders with the ears or nose. He filed a claim for
heart disease in September 1975 but there is no evidence of a
claim for cold exposure injuries. Further, he filed a claim
for injuries due to shell fragment wounds in February 1992
but did not claim cold exposure injuries, nor did he mention
cold exposure symptoms at the April 1992 VA examination.
Finally, the veteran filed another claim in April 2004 for
PTSD. In a subsequent VA examination in July 2004, he
mentioned the shell fragment injuries to his hip and left ear
while serving in Korea. However, there was no observed or
claimed cold exposure injury.
After submitting his current claim in November 2004, the
veteran underwent a VA examination in March 2006 to address
his cold exposure claims. There, he claimed, among other
things, non-specific disorders to his left ear but did not
allege injury to his nose. Physical examination revealed
that the nose and ears were within normal limits. The
diagnoses included a comment that the nose and ear
examination was normal.
The Board notes that, for entitlement to compensation, the
evidence must show the existence of a disability. In the
absence of an identified disease or injury, service
connection may not be granted. Brammer, 3 Vet. App. at 225.
At this time, there is no competent evidence that the veteran
has cold injury residuals to his nose or ears. At best,
there are complaints of symptomatology without underlying
pathology. Symptoms alone cannot be compensable without an
in-service disease or injury to which the pain can be
connected by competent evidence. See Sanchez-Benitez v.
West, 25 F.3d 1356 (Fed. Cir. 2001). As a consequence, the
appeal is denied.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as
amended), 3.326(a) (2007).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in November 2004 that fully
addressed all notice elements and was sent prior to the
initial RO decision in this matter. The letter informed him
of what evidence was required to substantiate the claim and
of his and VA's respective duties for obtaining evidence.
There is no allegation from the veteran that he has any
evidence in his possession that is needed for full and fair
adjudication of this claim. Under these circumstances, the
Board finds that the notification requirements of the VCAA
have been satisfied as to both timing and content.
With respect to the Dingess requirements, in December 2006,
the RO provided the veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal.
Therefore, adequate notice was provided to the veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the veteran in the development
of the claim. This duty includes assisting him in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration.
These four factors are: (1) competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) evidence establishing an in-service event,
injury, or disease, or manifestations of certain diseases
during the presumptive period; (3) an indication that the
disability or symptoms may be associated with service; and
(4) whether there otherwise is sufficient competent medical
evidence of record to make a decision on the claim.
38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the types of evidence
that "indicate" that a current disability "may be
associated" with service include, but are not limited to,
medical evidence that suggests a nexus but is too equivocal
or lacking in specificity to support a decision on the
merits, or credible evidence of continuity of symptomatology
such as pain or other symptoms capable of lay observation.
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). Specifically, the RO obtained service
treatment records and VA outpatient treatment records.
Further, the veteran's written statements were associated
with the claims file.
Additionally, in March 2006, the veteran was afforded a VA
examination that was specifically addressed the issue on
appeal. Therefore, the available records and medical
evidence have been obtained in order to make an adequate
determination as to this claim.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance is required to fulfill VA's
duty to assist in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Service connection for residuals of cold exposure to the nose
and ears is denied.
____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs